Tendency evidence is some of the most powerful material a prosecutor can bring to a criminal trial. It tells a jury that the accused has behaved a particular way before, and invites them to reason that the charged conduct fits a pattern. But that power is precisely why the law hedges it with strict procedural controls. Before tendency evidence can be admitted, the party wishing to rely on it must serve a tendency evidence notice that complies with the Evidence Act 1995 (NSW), Part 3.6, and the associated rules of court. Miss a requirement, and the evidence may never reach the jury.
What a tendency evidence notice actually is
A tendency evidence notice is a formal document served by a party (almost always the prosecution) on the other parties to a proceeding before trial. Its purpose is to put everyone on notice that tendency evidence will be relied upon, to identify what that evidence is, and to state the tendency it is said to demonstrate. The notice requirement exists because tendency reasoning is inherently prejudicial. Without advance warning, a defendant can't properly prepare to challenge it.
The notice is a threshold step. It doesn't decide whether the evidence comes in. That question is resolved through a tendency evidence ruling made by the trial judge after hearing argument from both sides. The notice simply opens the door to that argument.
What the notice must contain
Under the Uniform Evidence Law framework applied in NSW, the notice must identify four things with sufficient particularity:
- The tendency the party intends to prove (the specific character trait or propensity).
- The acts, facts, or events that are said to demonstrate that tendency.
- The witnesses or evidence through which those acts will be proved.
- The purpose for which the tendency evidence is offered (that is, how it relates to a fact in issue at trial).
Courts have been clear that vague or boilerplate notices don't cut it. The tendency itself must be stated precisely. "A tendency to act violently" is unlikely to suffice without more. The notice needs to identify the specific way the accused allegedly behaved and tie that conduct to the charge before the court.
When the notice must be served
Timing matters. The Criminal Procedure Act 1986 (NSW) and the court's practice directions impose deadlines, and late service can be grounds for exclusion or adjournment. In the District Court and Supreme Court, prosecution notices are generally required to be served well before the trial date, giving the defence adequate time to consider whether to object and to prepare that objection properly.
The court retains a discretion to allow late notices in limited circumstances, but it won't exercise that discretion lightly where the defence would be genuinely prejudiced. A defendant who first hears that tendency evidence will be led on the morning of trial is in a very different position from one who had weeks to investigate and respond.
What happens if the notice is deficient
A deficient notice gives the defence a strong basis to object. The objection can be that the notice fails to adequately identify the tendency, that the evidence it refers to doesn't actually demonstrate the tendency stated, or that the notice was served too late for a fair response.
Running that objection is a skill in itself. Ann Valos Criminal Law regularly advises clients on whether a tendency notice meets the legal standard and whether the evidence it points to could survive a challenge at the ruling stage. Understanding how to run a tendency evidence objection is often just as important as understanding what the notice must say.
If a notice is found to be inadequate, the court may reject the tendency evidence outright, adjourn the trial to allow a fresh notice to be served, or permit the party to amend. Which outcome applies depends heavily on the degree of the deficiency and any prejudice to the defence.
How the notice connects to the ruling and the direction
The tendency evidence notice sits at the start of a three-stage process. First comes the notice. Then comes the ruling, where the judge decides whether the evidence is admissible at all. If the ruling is favourable to the party relying on the evidence, the judge then gives a tendency direction to the jury, explaining the limited purpose for which they can use it.
Each stage has its own requirements and its own pressure points. A weak notice can produce a narrow ruling. A narrow ruling limits the direction. And a misdirected jury can produce a ground of appeal. Ann Valos Criminal Law has over 15 years of experience working through all three stages, identifying where the prosecution's case is vulnerable and pressing those points at the right moment.
Practical implications for defendants
If you've been told that the prosecution intends to lead tendency evidence against you, the first thing to do is obtain a copy of the notice and have it reviewed by a specialist. The notice sets the boundaries of what the prosecution can do. If it's too broad, it can be cut back. If it's inadequately particularised, it can be challenged before the evidence reaches the jury at all.
Don't treat a tendency notice as routine paperwork. It signals that the prosecution is building a case on past conduct, and that requires a careful and early response.
Ann Valos Criminal Law is an accredited criminal law specialist firm with over 30 years of combined team experience. Ann Valos Criminal Law advises defendants on tendency evidence notices, objections, and ruling hearings across New South Wales courts.